Henderson v. Bowden

• Decision Date: 08 July 1999
• Docket Number: No. 91,965.,91,965.
• Citation: 737 So.2d 532
• Parties: Cal HENDERSON, etc., Petitioner, v. Isac B. BOWDEN, et al., Respondents.
• Court: Florida Supreme Court

737 So.2d 532

Cal HENDERSON, etc., Petitioner, v. Isac B. BOWDEN, et al., Respondents.

No. 91,965.

Supreme Court of Florida.

July 8, 1999.

Darrell D. Dirks and Manuel J. Alvarez of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, Florida, for Petitioner.

R. Kent Lilly and Angela R. Pulido of Kent Lilly, P.A., Lakeland, Florida, for Respondents.

WELLS, J.

We have for review Bowden v. Henderson, 700 So.2d 714 (Fla. 2d DCA 1997), which is in apparent conflict with our opinion in Everton v. Willard, 468 So.2d 936 (Fla.1985), on an issue regarding the doctrine of sovereign immunity. See Art. V, § 3(b)(3), Fla. Const. As a threshold matter, we conclude that the sheriffs deputies here owed the plaintiffs' decedents a duty of care because the deputies' alleged actions during the roadside detention placed the decedents within a foreseeable zone of risk. Regarding sovereign immunity, we resolve the apparent conflict by determining that Kaisner v. Kolb, 543 So.2d 732 (Fla.1989), controls this case and that Everton is factually distinguishable. Following the Kaisner line of cases, we conclude that sovereign immunity does not bar the instant suit because the deputies' actions were operational in nature as opposed to the discretionary, policy-making functions in which courts should not become involved under the separation-of-powers doctrine. The decision below is approved.

I. Factual Background

This is a wrongful death action filed by Isac Bowden and Luna Dell Archie Haywood, in their individual capacities and as co-personal representatives of the estates of their sons Damon and Robert Bowden, against Cal Henderson, Sheriff of Hillsborough County. In their second amended complaint, the plaintiffs alleged that Hillsborough County sheriffs deputies owed a duty of care to their sons resulting from the deputies' roadside detention of a vehicle in which they were passengers. The plaintiffs further alleged that the deputies breached this duty, i.e., were negligent when, after arresting the driver for driving under the influence (DUI), they directed an intoxicated person to drive the vehicle and that this decision caused the deaths of their sons. In a third amended complaint, the plaintiffs also alleged a claim of negligent pursuit. The trial court granted Sheriff Henderson's motion for summary judgment on both claims.

The record developed at the time the court granted summary judgment reveals the following facts.¹ On the evening of August 7, 1992, three brothers, Jimmy, Damon, and Robert Bowden, and their friend, Brandon Lyons, were riding in a 1988 Honda owned by Lyons' father. Lyons stated in his deposition that he and all the Bowdens had ingested alcohol and acid, or LSD,² that night. After leaving a party, Lyons, feeling he was too intoxicated to drive, asked Jimmy to assume control of the car. Jimmy drove the vehicle, Lyons sat in the front passenger seat, and Damon and Robert sat in the back seat.

Shortly before midnight, Deputy Gary Herman stopped the Honda after he clocked it traveling seventy-four miles per hour in a forty-five-mile-per-hour speed zone. Deputy Given Garcia, along with other deputies, arrived shortly afterward to assist Deputy Herman. The deputies eventually arrested Jimmy Bowden, charging him with DUI.

Lyons testified he remembers nothing from when he relinquished control of the car until Deputy Herman stopped them. Lyons further testified he does remember, after the deputy stopped his vehicle, that he repeatedly told the deputies that he was intoxicated.³ Despite his admission of intoxication, Lyons said that a deputy, he could not remember which one, directed him to drive to a nearby Circle K convenience store. The deputy allegedly told Lyons that he would follow Lyons to the store. Lyons drove to the Circle K and waited. After a while, Lyons decided to drive away from the parking lot. From that point until the accident, Lyons has no recollection of what transpired.

Deputies Herman and Garcia denied that Lyons indicated to them that he was intoxicated. To the contrary, both testified that Lyons insisted he was sober and that each administered a field sobriety test, with each result indicating Lyons was not impaired. Moreover, neither Herman nor Garcia smelled alcohol on Lyons' breath.⁴ The deputies decided that the three should not drive home on their own because of the belligerent manner in which Damon Bowden was acting. They gave Lyons the following option: he could either drive to a nearby Circle K convenience store and call his parents for a ride home; or he could have the car impounded, and his parents could pick them up at the police station. Lyons opted to drive to the convenience store to call his parents.

According to the deposition testimony, approximately three minutes after Lyons departed for the store, Deputy Herman left the scene with Jimmy Bowden in the back of his cruiser and Deputy Garcia proceeded to the store to ensure that Lyons called his parents. When Deputy Garcia arrived at the store, he witnessed Lyons' vehicle leaving the parking lot at a high rate of speed. Deputy Garcia gave chase but did not activate his cruiser's emergency lights or sirens. Lyons subsequently failed to negotiate a turn in the road and collided with a cluster of trees. Damon and Robert were killed.

On this record, Sheriff Henderson moved for summary judgment. The trial judge entered a partial summary judgment, ruling that sovereign immunity barred plaintiffs' general negligence claim, but he allowed the plaintiffs leave to amend their complaint to state a cause of action for negligent pursuit. The court eventually entered final summary judgment on this claim, finding that the plaintiffs failed to state a cause of action under City of Pinellas Park v. Brown, 604 So.2d 1222 (Fla.1992). The Second District Court of Appeal reversed, holding that the deputies owed Damon and Robert Bowden a duty of reasonable care during the roadside detention and that sovereign immunity did not bar the claim. Bowden v. Henderson, 700 So.2d 714 (Fla. 2d DCA 1997). The district court concluded that the facts offered in support of the negligent pursuit claim should be alleged with the other facts in a single count of negligence. Id. at 716. We granted Sheriff Henderson's petition for review.⁵

II. Discussion

The State of Florida has waived sovereign immunity in tort actions for any act for which a private person under similar circumstances would be held liable. See Art. X, § 13, Fla. Const.; § 768.28, Fla. Stat. (1995).⁶ A threshold matter is whether the sheriff's deputies had a duty to act with care toward the decedents; for, as we have stated time and again, there can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances. See City of Pinellas Park v. Brown, 604 So.2d 1222, 1225 (Fla.1992)

; Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989); Trianon Park Condo. Ass'n, Inc. v. City of Hialeah, 468 So.2d 912, 917 (Fla.1985). "Conceptually, the question of the applicability of ... immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity." Kaisner, 543 So.2d at 734 (quoting Williams v. State, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, 139 (1983)). Assuming a duty is owed, we must then determine whether sovereign immunity bars an action for an alleged breach of that duty. See id. at 736.

A. Duty

In McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992), this Court explained the legal analysis that a court must engage in when determining whether the defendant in a negligence action owed a duty of care to the plaintiff:

The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader "zone of risk" that poses a general threat of harm to others. See Kaisner, 543 So.2d at 735

(citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla.1983))....

... Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. As we have stated:

Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.

Kaisner, 543 So.2d at 735 (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla.1983)) (emphasis added); see Webb v. Glades Elec. Coop., Inc., 521 So.2d 258 (Fla. 2d DCA 1988)

. Thus, as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken. J.G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45 (1912).

The statute books and case law, in other words, are not required to catalog and expressly proscribe every conceivable risk in order for it to give rise to a duty of care. Rather, each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result. This requirement of reasonable, general foresight is the core of the duty element. For these same reasons, duty exists as a matter of law and is not a factual question for the jury to decide: Duty is the standard of conduct given to the jury for gauging the defendant's factual conduct. As a corollary, the trial and appellate courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant.

Id. at 502-03 (footnotes omitted);⁷ see also W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 53, at 359 (5th ed. 1984) ("No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it...